State ex rel. O'Diam v. Greene Cnty. Bd. of Comm'rs

161 Ohio St.3d 242

162 N.E.3d 740

2020 Ohio 3503

The STATE EX REL. O'DIAM, Judge,

v.GREENE COUNTY BOARD OF COMMISSIONERS et al.

No. 2018-0447

Supreme Court of Ohio.

Submitted September 10, 2019

Decided July 1, 2020

Porter, Wright, Morris & Arthur, L.L.P., Kathleen M. Trafford, Columbus, and Caroline M. Gentry, Dayton, for relator.

Surdyk, Dowd & Turner Co., L.P.A., and Dawn M. Frick, Miamisburg, for respondents.

Paul W. Flowers Co., L.P.A., Paul W. Flowers, and Louis E. Grube, Cleveland, for amicus curiae, Ohio Association of Probate Judges.

DeWine, J. {¶ 1} This is a mandamus case. A judge asks us to compel a county to pay for his outside legal counsel. But the General Assembly has passed a set of statutes prescribing a process for all county officials, including judges, to follow in obtaining outside legal counsel. The judge did not follow the statutory process, and we have no reason to think that there is any constitutional problem with the statutory process. As a consequence, he is not entitled to compel the county to pay for his lawyer. We deny the writ of mandamus.

FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} This is not the first time this court has weighed in on the underlying dispute, and before going further it is worth briefly recapping our prior decisions on the matter. In March 2018, Greene County Probate Judge Thomas O'Diam issued two orders that sought to take control of a courtroom, Courtroom 3, which was under the control of the General Division of the Greene County Court of Common Pleas. The orders also sought to compel the county to pay for any legal expenses "arising out of, occasioned by, or directly or indirectly relating to" the orders or any subsequent proceedings "in mandamus, contempt or otherwise" arising from the board's failure to comply with the orders.

{¶ 3} The Greene County Board of Commissioners ("board") filed a petition for a writ of prohibition attempting to stop Judge O'Diam's orders from taking effect. Shortly thereafter, Judge O'Diam filed the present mandamus action seeking to enforce his orders. We granted the writ of prohibition. State ex rel. Greene Cty. Bd. of Commrs. v. O'Diam , 156 Ohio St.3d 458, 2019-Ohio-1676, 129 N.E.3d 393, ¶ 26, 27 (" O'Diam I "). And in this case, we entered judgment on the pleadings in favor of the board as to the courtroom-control issue, thereby putting an end to Judge O'Diam's attempt to take control of Courtroom 3. 155 Ohio St.3d 1442, 2019-Ohio-1721, 122 N.E.3d 204. But we did not then settle whether Judge O'Diam may force the board to pay his legal expenses. Rather, we issued an alternative writ as to the part of the mandamus action that sought to compel payment of legal expenses and required the parties to submit evidence and briefs on the issue.

Judge O'Diam sought to improve the probate court's facilities

{¶ 4} Why did all this litigation come about? Over time, Judge O'Diam had become concerned about deficiencies in the facilities that had been assigned to the probate court. In early 2017, he came to believe that Courtroom 3—which was in the same building as the probate court but under the control of the General Division of the Common Pleas Court—was underutilized. He thus proposed to county officials and to the general division that the probate court share usage of that courtroom. For whatever reason, the different interested parties could not resolve their disagreements over the use of Courtroom 3, and as a result, Judge O'Diam issued the two March 2018 orders that are the basis for the present litigation.

Judge O'Diam hired private counsel without consulting the county prosecuting attorney and insisted that the county pay for counsel of his choosing

{¶ 5} In his supporting affidavit, Judge O'Diam claims that by midsummer 2017, he had concerns that he might need outside counsel to aid him in his efforts to "secure a suitable and sufficient courtroom and related facilities." And he avers that he believed that the county prosecuting attorney had a conflict of interest that would have precluded the prosecuting attorney from adequately representing his interests. Thus, he made inquiries with five law firms regarding representation in a potential legal dispute over court facilities. (There is no indication that Judge O'Diam consulted the prosecuting attorney at this stage to obtain advice on how to handle any anticipated conflicts.)

{¶ 6} In July 2017, Judge O'Diam contacted Kathleen Trafford, an attorney with Porter, Wright, Morris & Arthur, L.L.P. Trafford discussed the courtroom-control issue with Judge O'Diam and proposed a fee structure under which Porter Wright would bill Trafford's time at $350 an hour, cocounsel's time at $300 an hour, and an associate's time at $250 an hour. Satisfied with the arrangement, Judge O'Diam selected Porter Wright to advise him, and in February 2018, Trafford sent him a formal engagement letter. That letter included the agreed-upon fee structure and confirmed that the firm would represent Judge O'Diam in his official capacity as a judge of the Greene County Probate Court.

{¶ 7} On March 5, 2018, the same day Judge O'Diam issued his first order attempting to take control of Courtroom 3, he also sent a letter to the county prosecuting attorney and the board requesting, under R.C. 305.14(A), that they apply to the court of common pleas for approval to employ private counsel to represent him.

{¶ 8} Three days later, the board adopted a resolution to construct a new probate-court facility in the basement of the juvenile-justice-center building. Then, on March 13, Judge O'Diam issued an order purporting to invalidate the board's resolution and demanding that the board "immediately and permanently refrain from any attempt to directly or indirectly enforce, pursue or act upon" the resolution. The same day, Judge O'Diam issued a separate order in which he rescinded his March 5 request to the prosecuting attorney and the board regarding the application to employ counsel for him and sua sponte appointed Porter Wright to represent him.

{¶ 9} Despite Judge O'Diam's actions, on March 14, the prosecuting attorney and the board applied to the court of common pleas for authority to employ outside counsel for Judge O'Diam under R.C. 305.14(A). The next day, the board filed the complaint for a writ of prohibition—the subject of O'Diam I —against Judge O'Diam in this court.

{¶ 10} Meanwhile, the county's attempts to procure outside counsel for Judge O'Diam proceeded, and on April 2, 2018, Greene County Common Pleas Juvenile Court Judge Adolfo Tornichio authorized the board to employ counsel. The board then solicited proposals for Judge O'Diam's representation. Initially, only Porter Wright responded, but the firm declined to reduce the hourly rates that had previously been quoted to Judge O'Diam to meet the board's proposed fee structure. So the board again solicited proposals for outside representation, and it received five bids, with top rates ranging from $165 per hour to $350 per hour. But in July 2018, Judge O'Diam informed the county that he would not participate in interviewing more firms and that Porter Wright would continue to represent him.

ANALYSIS

{¶ 11} The question we must answer is whether Judge O'Diam is entitled to outside counsel at the county's expense when he did not use the process set forth in R.C. 309.09(A), 305.14(A), and 305.17.

{¶ 12} Judge O'Diam claims that his inherent authority as a judge entitles him to force the county to pay any legal expenses arising out of his official duties. Determining the full scope of a court's inherent authority presents a difficult question that requires working out the proper boundaries of competing principles related to both the separation of powers and the balance of powers. See State ex rel. Johnston v. Taulbee , 66 Ohio St.2d 417, 426, 423 N.E.2d 80 (1981) (Holmes, J., concurring in part and dissenting in part). But we need not fully wade into those deep waters here. This is so, because the inherent power of a court does not allow a judge to sidestep an otherwise constitutional statutory process. In short, the General Assembly has passed a set of statutes that provide a process through which county officials—including judges—can get legal counsel. And unless those statutes are constitutionally infirm in some way, that is something that the General Assembly had the power to do. Because there is no constitutional infirmity in the statutory scheme, officials must abide by it. Judge O'Diam did not, and hence he is not entitled to force the county to pay for his lawyer.

Judge O'Diam did not follow the statutory process

{¶ 13} R.C. 309.09(A), 305.14(A), and 305.17 set forth the process through which county officials, including judges, may procure outside legal counsel. R.C. 309.09(A) states that "[t]he prosecuting attorney shall be the legal advisor of * * * county officers and boards" and "shall prosecute and defend all suits and actions that any such officer [or] board * * * directs or to which it is a party." That provision also states that "no county officer may employ any other counsel or attorney at the expense of the county, except as provided in [ R.C. 305.14 ]." Id.

{¶ 14} R.C. 305.14(A), in turn, states that "[t]he court of common pleas, upon application of the prosecuting attorney and the board of county commissioners, may authorize the board to employ legal counsel to assist the prosecuting attorney." Such representation may extend to "any matter of public business coming before such board or officer" or to "the prosecution or defense of any action or proceeding in which such board or officer is a party or has an interest, in its official capacity." Id. Finally, R.C. 305.17 provides that the board "shall fix the compensation of all persons appointed or employed under [ R.C. 305.14 ]."

{¶ 15} So, in broad outline, the statutory scheme sets forth the following process for county officials to procure outside representation. Normally, the county prosecuting attorney will...